Legal Services and Laws of Sri Lanka

SLR-1995 Vol.2-P120

SLR - 1995 Vol.2, Page No - 120








Constitutional Law - Article 126 of the Constitution - Time Bar - Relevant date for computation of time.

The Petitioners were employed by therespondentCorporation.On24.9.90theCorporationcalledforapplicationsfor
promotion to Grade IV, V A and V B. The Petitioner and the others were interviewed on 20.10.90 and 27.10.90. On 30.10.90the
Corporation published a list of the Names of thePromotees.Lettersofappointmentdated29.10.90weregiventothe
promotees. The petitioners appealed to the Chairman of the Corporation, and he on 7.12.90repliedthatnousefulpurpose
will be served by forwarding their representations to the President and the Minister. On further appeals,theSecretaryto
the Minister was appointed to hold an inquiry. On 1.2.93 the Chairman confirmed the impugned promotions anddecidedtopay
the increments of the promotees which had been withheld pending inquiry. These applications under Article 126 werefiledon
A preliminary objection was taken that the claims of the petitioners are time barred.

(1) The impugned appointments were published on 30.10.90. Thepromoteeswereissuedwithlettersofappointmentdated
29.10.90. They were not informed of anysuspensionofthoseappointments henceattheconclusionofadministrative
inquiries in 1993, they were paid all increments of salary which had been withheld.
(2) In the circumstances, the alleged violation of rights occurred in October 1990pursuit of administrativeremediesdoes
not interupt the time limit of one monthhence the Petitioners applications are time barred.

Cases referred to:
1. Gamaethige v Siriwardane -1988 1 SLR 384.
2. Wijenaike v Air Lanka Ltd. - 1990 1 SLR 293.
APPLICATION for infringement of the Fundamental Right of Equality.
R. K. W. Goonesekera for Petitioner.
Asoka de Silva, D.S.G., for 1-4 Respondents.

L.C. Seneviratne, PC. with Ronald Perera for 5, 6, 8,-28th and 27th-35th Respondents..

August 04, 1995.

Of consent the above application and applications Nos. 120 to 144/93 were heard together. Counsel agreedthatthedecision
herein will determine all the applications.
A preliminary objection was raised against these applications on the ground that theclaimsofthepetitionersaretime
barred. We heard arguments of Counsel on that objection and reserved our judgment thereon.

The petitioners are officers employed by the 1st respondent Corporation. On 24.09.90 the corporation called forapplications
for promotion to Grades IV, V - A and V -BoftheCorporation'sService.Therewere169applicants(includingthe
petitioners) who were interviewed by an Interview Board on 20.10.90 and 27.10.90. On 30.10.90theCorporationpublisheda
list of 31 promotees. The petitioners allege that the saidpromotionswerediscriminatoryinthattheselectionswere
unfairly made, overlooking relevant considerations suchasseniorityandexperience,inderogationoftheSchemeof

Letters of appointment dated 29.10.90 were given to the promoteeswhereupon the petitioners appealed to the formerChairman
of the Corporation who replied on 07.12.90 that no useful purpose will beservedbyforwardingtherepresentationsmade
against the impugned appointments to the President and the Minister.

On further appeals by the petitioners, Mr. Wijeratne Banda, the former Secretary to the Ministry of Fisherieswasappointed
to hold an inquiry into the matter. On the basis of his report the BoardofDirectorsdecidedon23.11.92thatcertain
officers should be charge sheeted for allegedly misleading the Interview Board by presenting wrong information.However,on
01.02.93 the 2nd respondent (The Chairman of the Corporation) confirmed theimpugnedpromotionsanddecidedtopaythe
increments of the promotees which had been withheld pending inquiry. Whereupon the petitioners filedtheseapplicationson
Pursuant to a direction of this Court to add the 31 promotees as parties, amended applications were filed on 09.03.93.
Mr. J. A. N. de Silva, D.S.G.andMr.SeneviratnePresident'sCounselfortherespondentsarguedthatthealleged
infringement was the making of the impugned promotions on 29.10.90 which were published on 30.10.90the formerChairmanby
his letter dated 07.12.90 rejected the representations made by the petitionersthe petitioners have failedtocomebefore
this Court within one month of the alleged infringementpursuit of administrative remedies does not interrupt theoperation
of time limit. Gamaethige v. Siriwardena "' there was nothing to prevent the petitionersfilingtheirapplicationsbefore
this Court within time and then seeking administrative relief also, if so advised.

Mr. R. K. W. Goonesekera for the petitioners conceded that if the violation was the appointments in October, 1990,thenthe
petitioners are out of time. He, however, contended that there was no finality to those appointments,pendinginquiryinto
the appeals by the petitioners, as is seen by the fact that the promotees were not paidtheirincrements.Mr.Goonesekera
argued that there can be a decision in respect of which time will not run until it becomes final. He cited Wijenaikev.Air
Lanka Limited"(2)', in support.
In Wijenaike's case the impugned decision was a notice of vacation of post dated 06.05.88 servedonthepetitioner.After
the petitioner had given his explanation the Chairman. AirLankarefusedre-employmenttothepetitioneron08.11.88
whereupon the petitioner filed his application complainingofinfringementofhisrightsunderArticle12(1)ofthe
Constitution. This Court held that there is no automatic termination of services of anofficerbyreasonofunauthorised
absencethat the principle of Roman Dutch Law entitling the employer to repudiate the contract on the ground ofabsenceof
the servant in appropriate circumstances necessarily implies a right in the employee to give his explanation beforeafinal
decision is taken to repudiate or revoke the contract. Hence the relevant date for computation of time was 08.11.88 whenthe
Chairman refused re-employment.

Wijenaike's case has no application to the instant case. In that case the finaldecisionwaspostponedintermsofthe
applicable principles of law. Here, there is no such decision. The impugnedappointmentswerepublishedon30.10.90.No
question of finality, as a matter of law arose. The promotees were issued with letters of appointmentdated29.10.90.They
were not informed of any suspension of those appointmentshence, at the conclusionofadministrativeinquiriesin1993,
they were paid all increments of salary which had been withheld. I am, therefore, of the view that the allegedviolationof
rights occurred in October, 1990.
For the foregoing reasons, I hold that the applications of the petitioners are time barred. This application and
applications Nos. 120 to 144193 (both inclusive) are accordingly dismissed, but without costs.

G. P S. DE SILVA, C.J. - I agree.
RAMANATHAN, J. - I agree.
Applications dismissed.

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